Theme 12: Provincial Government PDF

Lecture theme 12: Provincial Government Inquire into the legislative authority of the provinces as determined in section 104 of the Constitution. ▪ The legislative authority of a province is vested in the province’s provincial legislature. ▪ Provincial legislatures only have the legislative power...

Lecture theme 12: Provincial Government Inquire into the legislative authority of the provinces as determined in section 104 of the Constitution. ▪ The legislative authority of a province is vested in the province’s provincial legislature. ▪ Provincial legislatures only have the legislative powers specifically accorded to them by the Constitution. ▪ They do not have any residual legislative powers, as is often the case in other systems. ▪ A provincial legislature’s legislative power can generally be divided into three parts: o (a) the adoption of a provincial constitution; o (b) the adoption of provincial laws; and o (c) the assignment of powers to local governments. ▪ Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ▪ Inquire into the composition and election of provincial legislature. Substantiate with reference to the Constitution. ▪ The composition and functioning of provincial legislatures is in many respects very similar to that of the national legislature. ▪ The constitutional requirements with regard to the composition, functioning and other legislative mechanisms of provincial legislatures are set out in sections 105–124 of the Constitution. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ▪ ▪ Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. What is the term of a provincial legislature? ▪ According to Section 108 of the Constitution,: o (1) A provincial legislature is elected for a term of five years. o (2) If a provincial legislature is dissolved in terms of section 109, or when its term expires, the Premier of the province, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the legislature was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of a provincial legislature. o (3) If the result of an election of a provincial legislature is not declared within the period referred to in section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside. o (4) A provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature. Identify the three levels/spheres of government in the South African Constitutional system. ▪ In the Republic, government is constituted as national, provincial and local spheres of government, which are distinctive, interdependent and interrelated. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Inquire whether the boundaries of the 9 provincial governments in South Africa can be altered? Substantiate with reference to the Constitution. ▪ In order to alter the provincial boundaries, an amendment of the Constitution will be required. Such an amendment will be achieved only if a two-thirds majority in the National Assembly (NA) and at least six provinces in the National Council of Provinces (NCoP) support such an amendment.13 The Constitution further requires that the provincial legislatures of the affected provinces must concur with the decision in the NCoP. Inquire whether a provincial government can change its name. Substantiate. ▪ The Constitution provides that if a province wants to change its name, the provincial legislature must request Parliament to do so, and that at least two-thirds of the members of the provincial legislature must support such a resolution. Inquire and evaluate the legislative powers of the provincial legislature. Substantiate with reference to the Constitution. ▪ See Section 104 above. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Inquire whether the national government can unilaterally change the legislative powers of the provinces? ▪ the national government cannot unilaterally change the legislative powers of the provinces. The Constitution of South Africa sets out the powers and functions of the provinces and their legislatures1. The legislative authority of a province is vested in its provincial legislature, which has the power to pass legislation for its province with regard to any matter within a functional area listed in Schedule 4 or Schedule 5 of the Constitution. ▪ Any changes to the legislative powers of the provinces would require an amendment to the Constitution, which can only be done through a special process involving both Houses of Parliament and a two-thirds majority vote. Inquire and distinguish between functional areas of concurrent legislative powers and exclusive provincial legislative powers. ▪ functional areas of concurrent legislative powers refer to areas in which both the national and provincial governments have the power to make laws. These areas are listed in Schedule 4 of the Constitution of South Africa and include matters such as agriculture, consumer protection, health services, housing, and public transport. ▪ On the other hand, exclusive provincial legislative powers refer to areas in which only the provincial legislatures have the power to make laws. These areas are listed in Schedule 5 of the Constitution and include matters such as provincial planning, liquor licensing, provincial roads and traffic, and provincial sport. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Inquire whether a province can and must enact Provincial Constitutions for each province? ▪ A province can enact a Provincial Constitution for itself. The National Constitution permits each provincial legislature to adopt a constitution for its province. The Provincial Constitution must correspond with the National Constitution ▪ A provincial legislature may enact a constitution for that province if two-thirds of the members vote in favor. ▪ It is not necessary for a province to enact a Provincial Constitution, as the national constitution provides a complete structure for provincial government. What majority is required for a provincial legislature to pass or amend its Constitution? ▪ According to the Constitution of South Africa, a provincial legislature may pass or amend its Constitution if two-thirds of its members agree. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Evaluate the constitutional requirements regarding conflicts between national and provincial legislation. Place special emphasis on the conditions set out in section 146(2) of the Constitution. ▪ Inquire into the extent of the financial powers of a provincial legislature. ▪ Apart from general legislative powers, all provinces have limited financial powers and they are entitled to an equitable share of the national revenue of the State. Provincial legislatures may impose taxes, levies or duties. ▪ They may however not impose income tax, value-added tax (VAT), general sales tax (GST), property rates and customs duties. Flat-rate surcharges on taxes imposed by national legislation may be imposed except in cases of corporate taxes, value-added tax, property rates and customs duties. ▪ Although not specifically mentioned in the Constitution, a province may impose taxes on casinos, gambling, wagering, lotteries and Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. betting. It is important to note that the taxing powers of a provincial legislature must be regulated in terms of an Act of Parliament. Name the type of taxes that a province may not impose. ▪ A provincial legislature may impose taxes, levies, and duties other than income tax, value-added tax, general sales tax, rates on property or customs duties. From what revenue sources are provincial governments financed? ▪ In compliance with the Constitution, the Inter-governmental Financial and Fiscal Relations Act provides for the equitable distribution of national revenue among all spheres of government. ▪ Apart from the allocation of national revenue to the provinces, no additional revenue generated by the provinces may be deducted from their general share respectively. ▪ As a countermeasure, national government is not obliged to financially compensate provinces, apart from their national share, if they do not raise income in accordance with their own capabilities and capacities. ▪ All revenue received by a province must be paid into a provincial revenue fund and money from the fund may only be withdrawn in accordance with an Act of the relevant provincial legislature. Where is executive authority of a province vested? ▪ The executive authority of a province is vested in the Premier of the province. The Premier is the head of the provincial government and is responsible for appointing members of the Executive Council, who are responsible for the administration of various departments within the provincial government. How is provincial executive authority exercised? Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ▪ Inquire into the constitutional powers and functions of premiers. ▪ ▪ Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Inquire into the election, term of office and removal of premiers. ▪ ▪ Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Inquire and evaluate the constitutional requirements with regard to provincial supervision of local government. ▪ the Constitution of South Africa sets out the requirements for provincial supervision of local government. The national and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions. ▪ Provincial government is required to make provision for the monitoring of local government by legislative and other measures. Provincial government is also required to oversee the effective performance by municipalities of their powers in respect of the matters listed in Schedules 4 and 5 of the Constitution by regulating the exercise by municipalities of their executive authority Inquire whether a premier of a province can be removed from his/her office on both political and non-political (legislative) grounds? Substantiate with reference to the Constitution. ▪ Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share.